245(i) is the section of law in the INA which allows for some immigrants who entered without inspection to adjust their status while waiting in the United States. This means that eligible immigrants may qualify to obtain a green card without having to leave the United States.
One of the ways to qualify is to present an old I-130 petition that was filed with immigration on or before April 30, 2001. People who were sponsored by their employers also may qualify. Those for whom the petition was filed may qualify. The immigrant’s children and spouse may also be protected under 245(i). Those who meet all requirements for 245(i) eligibility can avoid consular processing. Also, they may be able to simply file for their green card in the U.S.
When an immigrant has been petitioned and sponsored by a family member in the U.S., the immigrant cannot file for a green card, or permanent residency, until the date of filing of the I-130 petition appears in the visa bulletin charts for family-based immigrants. While this rule does not apply to immediate relatives, it does apply to everyone listed in the bulletin categories. The visa bulletin is issued and updated every month.Visa Bulletins, issued monthly, can be found here.
When a permanent resident sponsors a child who is over 20 years of age, that child must wait for many years before applying for permanent residence. Let’s say the I-130 petition was filed on April 28, 2001. That date, on which the petition was received by the government, is called a “priority date.” When the priority date or a date beyond the priority date appears in the applicable box on the visa bulletin charts, the immigrant may be able to file for adjustment of status.
In this example, the child would now look to the current monthly visa bulletin. If, for example, the category under the Mexico F2B column shows a date of May 1, 2001, the child may now qualify for adjustment of status under Section 245(i) of the INA because May 1, 2001 falls after the priority date on the child’s petition. A $1,000 penalty fee payment is always required in 245(i) adjustment cases.
Another example is that of a sister of a U.S. citizen. This is category F4 in the visa bulletin. If you check the dates for July 2022 in this visa bulletin, you will see that the date for filing shows March 15, 2001.
If the priority date of the I-130 filed for the Mexican national sister is also April 28, 2001, then the sister is not yet eligible to adjust status as of July 2022. This is because the visa bulletin F4 category for Mexico currently reflects a date of March 15, 2001. March 15, 2001 falls before April 28, 2001. Thus, she is not eligible yet, but we can predict that she will become eligible soon as future visa bulletins are released each month.
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Over 4 million people are waiting for their priority dates to become current in the visa bulletin. Out of these millions of immigrants, those from Mexico face some of the longest wait times after the filing of an I-130 petition. As of June 2022, the visa bulletin reflects that ALL visa preference categories for ALL countries are beyond the April 30, 2001 date EXCEPT FOR SOME FROM MEXICO.
For example, people from Mexico whose U.S. citizen brother or sister filed for them on or before April 30, 2001 have been waiting in line for more than 20 years. They will soon become eligible to legalize their status in the U.S. Only if they meet all other requirements for adjustment of status, even though they may have entered illegally.
Adult, unmarried children of permanent resident parents, however, can now see that the visa bulletin is beyond the 245(i) sunset date of April 30, 2001; thus, some of these individuals can already seek to adjust their status.
It is very important that you avoid filing for adjustment of status unless you know that you qualify under all aspects of the law. A qualified attorney can review your old immigration paperwork and your immigration history to determine whether or not you can adjust your status to permanent resident inside the U.S. Contact us or call us at 512-952-2176 for consulting.
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Over the years, we’ve found that there are a handful of very common, yet very important questions people have regarding immigration attorney. Here are answers to some of our most Frequently Asked Questions.
When someone wants to directly help a family member gain legal status in the U.S., the first step is the filing of an I-130 petition. Residency, which is the legal status that green card holders have, can only be considered and approved after an I-130 has been approved.
The approval of an I-130 petitions means that the family relationship has been established and acknowledged by USCIS. For example, if you have petitioned a child, an approval means that USCIS has acknowledged that the person you filed for qualifies as your child under the law. The meaning of “child” can include not only biological children, but sometimes stepchildren and adopted minors.
If you have petitioned your spouse, an approval of your I-130 petition indicates that USCIS has both acknowledged that your marriage is legal and that your relationship is genuine.
The person filing the petition must be a U.S. citizen or a lawful permanent resident (LPR). U.S. citizens qualify to petition more types of relatives than permanent residents.
Permanent residents qualify to file I-130 petitions for:
U.S. citizens qualify to file I-130 petitions for:
The immigrant being petitioned must apply on their own for residency in order to obtain a green card. That residency application cannot be approved without presenting an approved I-130 petition filed by the immigrant’s LPR or U.S. citizen relative. Once the I-130 is approved, the immigrant may be granted a green card by applying for an immigrant visa from a consulate outside the U.S. or by filing for adjustment of status in the U.S.
All immigrants must prove that they are “admissible.” This means, for example, that those with certain types of criminal convictions in their past may not qualify or may need a waiver. The same is true for those with past violations of immigration law.
It is important to know whether your family member will qualify to receive residency before filing an I-130 petition. An experienced immigration attorney can advise you as to whether your loved one will ultimately be able to receive a benefit before you file the case.
The question is far more complex than many realize. First, everyone must wait for USCIS to process the petition. USCIS posts its current processing times on their website. But in addition to that normal processing time, some people must wait years after filing their I-130 petition before they can actually ask for residency. Others, who are considered “immediate relatives,” do not have to wait in a long line and their process typically moves much faster. “Immediate relatives” are spouses of U.S. citizens, unmarried children (who are under 21) of U.S. citizens, and parents of U.S. citizens age 21 or older. Many immediate relatives already in the U.S. choose to file the I-130 petition and the residency application at the same time.
A qualified immigration attorney can help you predict how long the entire process could take and can advise you as to whether your immigrant family member can ask for residency immediately or whether they must wait until their date becomes current in the visa bulletin. Another factor which affects the processing time is whether the immigrant will have their interview at a consulate outside the U.S. or whether they will be interviewed locally inside the U.S. Only certain immigrants are eligible to use an approved I-130 petition to seek adjustment of status in the U.S.
A 245(i) family-based petition is simply an I-130 petition that was filed on or before April 30, 2001. “245(i)” is simply the name of the section of law that allows certain immigrants who would not other qualify to still get their residency if they pay a $1,000 fee.
The most common examples relate to immigrants who last entered the U.S. illegally without inspection. Most immigrants who entered without inspection do not qualify to attend their green card interview in the United States. Instead, they must leave the U.S. and go back to their country for an interview at a U.S. consulate abroad. But if someone has an I-130 petition that was filed on their behalf, on or before April 30, 2001, they may qualify to obtain residency and have a green card issued without ever having to leave the U.S.
Some immigrants can qualify under this law even though they weren’t directly petitioned. For example, some immigrants were children when a U.S. citizen aunt or uncle petitioned their parent. That immigrant child could also qualify for benefits under 245(i) through the petition filed by their aunt or uncle. Immigrants may also qualify for 245(i) benefits if they were sponsored by an employer on or before April 30, 2001.
Family-based immigration is a process by which one can obtain a green card based on their familial relationship with a U.S. citizen or a green card holder. The U.S. citizen or U.S. permanent resident who files documents with the United States Citizenship and Immigration Services (USCIS) for a family member to be given a green card is called the sponsor. The relative for whom the documents are filed to get a green card is called a beneficiary who typically is outside the United States but can also be in the U.S.
To be a sponsor, one must be at least 18 years of age and must be a U.S. citizen or a lawfully admitted permanent resident (green card holder) legal permanent resident. A sponsor, however, cannot be deemed to have abandoned their U.S. domicile – meaning the U.S. citizen or green card holder must live in the U.S. or a territory.
A sponsor must sign an affidavit of support for the beneficiary, guaranteeing that the sponsor is to maintain the standard of living of the beneficiary at a level not lower than 125% of the national poverty level. This obligation, which is legally binding, continues until the beneficiary has become a U.S. citizen or has worked in the United States for about 10 years.
A U.S. citizen may petition for the following relatives to obtain a green card:
A green card holder may sponsor the following relatives for a green card:
For your relative to apply for a green card, you will first need to file a petition with USCIS, which contains the following documents:
Even as you file these documents, your relative will also need to file theirs, which shall include a copy of their passport, photos, and a medical examination. Both you and your relative may have to provide additional information if requested by USCIS.
When a green card is approved for your relative based on marriage, it will be a
conditional green card,” if the marriage upon which it is based occurred less than two years before the beneficiary was admitted as a U.S. permanent resident. Both spouses will need to jointly petition USCIS to remove the condition within 90 days of the second anniversary of the beneficiary’s admission as a permanent resident. If this is not done, the beneficiary’s conditional permanent resident status will be terminated.
If the couple gets divorced or otherwise no longer jointly files the petition to remove conditions, the beneficiary can file without the other spouse, but they must show proof the marriage was entered into in good faith and was terminated for the same reasons marriages typically end up being terminated.
The first thing to do is to file an I-130 Immigrant Petition for Alien Relative (I-130) with the USCIS. You should request in the petition that USCIS notifies a U.S. Consulate in the country where your spouse lives. You will then wait for the petition to be approved for the next step, as outlined below.
If you are a U.S. citizen, then your spouse does not have to wait until a visa becomes available before applying for an immigrant visa. However, if you are a green card holder, your spouse must wait until a visa becomes available to apply for their green card, and this can take years.
If you are a U.S. citizen, your spouse can file an application for adjustment of status to change their status to a green card holder. This application will be filed jointly with your I-130 petition.
However, if you are a green card holder, then you will first need to file an I-130 petition for your spouse, and your spouse can only apply after your I-130 petition is approved and a visa in her class becomes available. You can check with the Visa Bulletin for information on visa availability. Your spouse can only apply for their green card when their visa category becomes current